Fighting
for her daughterMother
was arrested in the 1997 death of little Jenna
The charge was dropped, but battle to clear her name goes on

HAROLD LEVYSTAFF REPORTER

Jun. 7, 2005. 07:09 AM

Six
years after a murder charge against her was dropped because experts found she
could not have killed her 21-month-old daughter, Jenna, three things are
painfully clear to Brenda Waudby:

Jenna's
killer has not been caught.

Her
name has not been cleared.

The
authorities who charged her refuse to give her an independent report that the
Peterborough woman believes will prove she was wrongly accused.

Police charged Waudby with killing her daughter in September 1997, based largely
on a report by Toronto pathologist Dr. Charles Smith.

Five other experts disagreed. They concluded that Jenna's injuries were
inflicted on the evening of her death, when Waudby was out of the home and the
toddler was in the babysitting care of a 14-year-old boy.

Smith no longer performs autopsies for the coroner's office.

Ontario's chief coroner, Dr. Barry McLellan, has since ordered an audit of
handling of exhibits at the pathology lab in Toronto's Hospital for Sick
Children, where Smith has his office. Just last week, McLellan told the Toronto
Star that a search of Smith's office had turned up missing physical evidence
that lawyers claim could exonerate a man who has already served more than 12
years in jail for the murder of his 4-year-old niece.

Today McLellan will release results of that audit at a news conference in
Toronto.

News of the discovery in Smith's office revived painful memories for Waudby, 39.
Years after charges against her were dropped, she learned that Smith kept for
five years an adult hair removed from Jenna's body during the autopsy.

She believes that if Smith had handed the hair to police for DNA testing instead
of keeping it in a drawer, she never would have been charged, and her daughter's
killer would have been brought to justice.

"I am a person who loved my daughter, who was trying to cope with a tough
life, and who was brought up to respect the police and the public
authorities," says Waudby.

"If it can happen to me, it can happen to anyone else."

Waudby has launched formal complaints and lawsuits against Smith and
Peterborough police.

Smith's handling of the Jenna case and two others would later lead to a
reprimand from the College of Physicians and Surgeons. The complaint against
police was dismissed.

The lawsuits, which are being defended by Smith and the officers, remain before
the courts.

Waudby is also pressing the authorities to release a medical opinion relating to
her daughter's case that was provided to the Ontario Coroner's office by an
expert on child physical abuse.

In April Waudby was again denied access to the document on the grounds that
there is an ongoing police investigation.

What Waudby wants, she says, is to clear her name and see someone charged with
Jenna's killing.

She wants it for herself, for her son Mac, 6, and her daughter Justine, 15. Most
of all, she says, "I owe it to Jenna."

Life was hardly easy for Waudby in Peterborough, 135 kilometres northeast of
Toronto, even before Jenna's death.

In 1996, while going through a turbulent separation from Jenna's father, she
became addicted to cocaine. In October she gave up custody of Jenna, then a
1-year-old, and Justine, then 6, until she got her act together. Waudby soon
seemed to have her life back in control, thanks to a Narcotics Anonymous group
and parenting classes. She had her children back with her just six weeks later.

"It was rough" Waudby says. "But it was nothing in comparison to
what lay ahead."

On Jan. 22, 1997 Waudby returned from an evening out with a friend after leaving
Jenna and her older sister with a neighbour's son.

She remembers pulling around a corner and seeing police and emergency vehicles
"all over the street."

As she arrived at the door of her duplex, her upstairs neighbour, the
babysitter's mother, was there along with police. There had been an accident,
she was told. Jenna was at the hospital and Brenda should go to her at once. It
would be a further half-hour before authorities told her Jenna was dead.

The nightmare intensified as Waudby dealt with doctors and police officers.

"I was treated differently at the hospital that night," Waudby said.
"There was something in the way they looked at me and questioned me. I felt
that I was being treated as if I had done something wrong."

She still went ahead and gave a statement to the police, took a lie-detector
test and provided samples of blood and DNA — all without insisting on the
advice or presence of a lawyer.

"I did everything they asked," Waudby says. "All I wanted was for
them to catch Jenna's killer."

"My name had been plastered all over the front of the paper," Waudby
says. "The more my name was in the news, the more people thought I was
guilty."

Even close family members thought the worst.

Doug Waudby says he's a fan of police investigative shows on TV. When his sister
was charged on the basis of forensic evidence, he believed she was guilty.

"You sort of have to believe science," he says.

Waudby was released on bail on the day of her arrest and soon found she was
shunned wherever she went in Peterborough, a small city with a population of
about 70,000.

"Going to a doctor's office, I was ashamed to give my name," Waudby
says. "I was embarrassed to say who I was."

Doug Waudby watched his sister struggle.

"She is almost 10 years my junior," he says. "Now she almost
looks 10 years older than me."

Even years later, she sometimes feels under suspicion.

"You take the kids to the park and families get up and leave, the entire
park leaves, for no apparent reason," she says.

Eight months after the death,
police charged Waudby with murder

"I invited eight kids to Mac's birthday party on May 1 and only
two showed up. There may been reasons for a couple of them, but not for the
others. It really makes me wonder."

Charles Smith was head of the prestigious Forensic Pathology Unit at the
Hospital for Sick Children at the time of Jenna's death, and considered the top
expert in the province on determining the cause of deaths of children.

He could not be reached for comment for this story.

Smith found Jenna had died from blunt trauma to her abdomen anywhere between 24
and 48 hours before her death. His opinion, filed at Waudby's preliminary
hearing, became the basis for Waudby's prosecution because it placed her at home
alone with her daughter when the injuries were inflicted.

His opinion made no mention of indications that Jenna may have been sexually
assaulted.

According to evidence at the preliminary hearing and other court documents, the
emergency room physician and an admitting nurse both made notes at the time of
damage to the toddler's rectum. A firefighter and a police constable both
mentioned possible sexual abuse in their notes.

Smith's report also omitted mention of the "curly hair" found near
Jenna's genitals.

Peterborough police, who claim they were not told of the strand, confirmed that
they obtained the hair about five years later when an officer reviewing the case
interviewed the pathologist — and Smith handed him an envelope containing the
hair.

Police refuse to say whether it matches the DNA of anyone involved in the case.

"If the police had been given the hair at the outset so that it could be
tested for DNA, I doubt that I would have been charged with murdering my
daughter," Waudby says.

But she doubts whether the hair is of much value as evidence now because it was
not carefully tracked over the years.

Waudby listed Smith's handling of the hair in her complaint to the College of
Physicians and Surgeons. She also alleged that Smith failed to perform a
standard rape test on Jenna's body.

The College reprimanded Smith in 2002 over "deficiencies in his
approach" to the Jenna case and two others.

Smith discussed his handling of the hair in a letter to the College in 2001.
"The police, who are responsible for the submission of evidence in a
homicide investigation, chose not to submit this material for analysis,"
Smith wrote. "It remained under seal in my care. I have asked the police
investigators to reconsider their decision...."

Since the reprimand, Dr. Smith's work has come under more scrutiny.

In April the chief coroner ordered a review of how the Sick Kids lab has handled
exhibits from major cases since 1991. That followed a Toronto Star report
that Smith misplaced tissue samples that lawyers for William Mullins-Johnson
were seeking so they could arrange for an independent evaluation of the evidence
from his trial.

The Sault Ste. Marie man, then 24, was convicted of murder in 1994 after a jury
trial in which scientific evidence played a major role in determining the time
of death, the cause of death and whether the victim had been sexually assaulted.

Prosecutor Brian Gilkinson withdrew the murder charge against Waudby on June 15,
1999, citing "certain medical evidence that has shifted dramatically."
That evidence consisted of six medical experts — including one appointed by
the Crown — who rejected Smith's opinion.

They concluded that Jenna's injuries had been sustained on the evening of her
death, when she had been left with the teenage neighbour.

At Waudby's preliminary hearing, the babysitter acknowledged that he took Jenna
to his apartment upstairs the night she died. The court also heard that the teen
had an anger management problem. In court documents he admitted that he hit
people and did unpredictable things when angry.

Waudby alleged in a complaint filed with the Peterborough police force in July
2002 that officers never fully investigated the teen, who is now in his early
20s.

Waudby followed up her complaints in late 2002 with an $8.5 million lawsuit
against Smith, the lead investigator and the Peterborough police service.

In her statement of claim Waudby accused Smith of "withholding evidence he
recognized did not fit the theory advanced by the police."

A statement of claim contains allegations which have not been proven in court.

Smith replied in his statement of defence that he pursued his duties as a
coroner "in a careful, competent, diligent manner, and in good faith.

"The post-mortem examination performed by Dr. Smith was thorough, according
to standards and done in good faith," the document says. "Appropriate
sampling was taken, and follow up investigations conducted. Likewise, where
appropriate, consultations from other experts were obtained."

The lead investigator and the Peterborough police services board say in their
statement of defence that they "had sufficient cause to suspect,
interrogate and surveill (sic) the Plaintiff and ultimately had reasonable and
probable grounds to arrest, charge and detain her with respect to the death of
her daughter."

The lawsuit is still before the courts.

Eight years after Jenna's death, Waudby says she has lost hope that the force
will make an arrest — because of the passage of time and because "they
have already bungled it once."

She rests her hopes for clearing her reputation on an independent medical
opinion on Jenna's death provided to the chief coroner's office by Dr. Kenneth
Feldman, a Seattle-based expert on child physical abuse.

The Feldman report was commissioned by then-deputy chief coroner Dr. Barry
McLellan. Now chief coroner, McLellan told the Toronto Star his office
provided Feldman with Smith's report and other materials.

A spokesperson for the Children's Hospital in Seattle said that Dr. Feldman
could not discuss his report due to confidentiality provisions.

Waudby asked McLellan for a copy of Feldman's report when she learned about it
in 2002. She renewed her request recently. But McLellan says a decision to
release it is up to Gilkinson and the Peterborough police.

Gilkinson says there is nothing he can do because there is no prosecution before
the courts.

Deputy-chief Jackman has declined to release it.

Jackman says that, while he appreciates the investigation has "dragged into
seven or eight years," he cannot release the opinion to Waudby because
"the fact remains that this thing is an active investigation."

Jackman says there are no officers working full-time on the case, but would not
provide details of the investigation.

"This kind of investigation takes time," he says. "We are not
going to put a time limit on it."

Time is exactly what troubles Waudby.

"It's eight years later and still no arrest? What if there is never an
arrest?" she says angrily. "That report is going to remain buried
forever, and that dark cloud will always be hanging over me and my family."

Doug Waudby says that his sister cannot be exonerated by the authorities soon
enough. "All this is just draining the life out of her," he says.